Ex Parte Sales

The opinion of the Court was delivered by Mr. Justice Watts. This action was commenced by D. M. Eaves on January 31, 1922, by the issuance of a summons, complaint, bond, affidavit, and warrant of attachment against the defendant, W. J. Sales. Pursuant to the warrant of attachment, the sheriff of Union County attached certain goods then in possession of the Southern Railway for transportation to Mollie Sales at Biltmore N. C. The defendant, W. J. Sales, failed to answer the complaint and was in default, whereupon at the June term of the Court the plaintiff, D. M. Eaves, recovered judgment against the défendant, W. J. [156] Sales, in the sum of $102.29. Eater, namely, on the 19th day of August, 1922, Mollie Sales, the petitioner, served a verified petition and notice upon the attorneys for the plaintiff, wherein she gave notice that the goods attached in this action belonged to her exclusively and that she was entitled to the possession thereof. No undertaking was given by the respondent to the claimant of this property, notwithstanding her notice. On September 15, 1922, petitioner served notice on the attorneys for the respondent that they would move before Judge I. W. Bowman, presiding Judge, Seventh Circuit, to discharge so much of the attachment in this case as held the goods of petitioner, on the ground that respondent had failed to give bond to petitioner as required by the Code. This motion was heard by Judge I. W. Bowman on October 6, 1922, and by an order filed October 10, 1922, he refused to grant the motion on the ground that plaintiff-respondent had already recovered judgment against W. J. Sales.” Appellant by seven exceptions imputes error on the part of his honor, five of which involve the construction of Section 287 of the Code (Volume 2, Code of Eaws, A. D. 1912), in reference to attachments, and the other two involving the jurisdiction of the Court and due process of law. The first exception must be sustained. When Mollie Sales claimed the property, she was a third party, and it was the duty of Eaves to give the undertaking that was required under Section 292, Code of Eaws, within 10 days after notice of said claim; and having failed to do so, he conceded the right of Mollie Sales to the property. First National Bank of Chillicothe v. McSwain, 93 S. C., 30, 75 S. E. 1106; Ann. Cas. 1914D, 809. Mollie Sales, when her property was seized to pay her husband’s debt, could intervene in the attachment-proceeding, as a third party, as she did, or she could have proceeded in a suit for claim and delivery. [157] If Eaves attached her property and not that of W. J. Sales, then the judgment obtained against him cannot be sustained, as Sales was not personally served, and the property attached was not his, but that of his wife; and Eaves’ failure to give the undertaking as required within 10 days conceded that the property attached belongs to Mollie Sales. Judgment reversed. Mr. Chief Justice Gary and Messrs. Justices Eraser, Cothran and 'Marion concur.